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Bye Bye Byrdie. The N.C. Supreme Court concludes “The Times They Are A-Changing.”

Although hundreds of medical malpractice lawsuits are filed each year, many never go to trial. They may end in settlement, funded by the physician’s insurer, or their conclusion is determined by rulings in favor of the healthcare defendants on their dispositive motions. Most that do go to trial result in a judgment for the physician, some in a judgment for the injured plaintiff, and, a smaller number are resolved via a post-trial settlement, as the insurance company and defense counsel, and the plaintiff’s lawyer, reassess their chances either just prior to the entry of a verdict, or while the case is on appeal.

It is less common for a medical malpractice case to result in a judgment against a nurse or other medical professional who carries out the orders of the physician. For this class of medical professionals, that is and has been a reassuring “protection” from the vagrancies of litigation. Unfortunately, the North Carolina Supreme Court may have eviscerated that protection with its recent decision in Connette v. Charlotte Mecklenburg Hospital Authority.

First, a little history. In a case decided in 1932, Byrd v. Marion General Hospital, the NC Supreme Court determined that nurses “must obey and diligently execute the orders of the physician.” Therefore, disagreements or contrary recommendations with regard to the physician’s prescribed course of treatment would ordinarily not create liability for a nurse directly involved in the treatment unless the treatment was “obviously negligent or dangerous.”

Justice Brogden, who interestingly served as the mayor of Durham before being appointed to the Supreme Court and winning reelection multiple times, summarized the state of the law in 1932 as follows:

The great weight of authority, however, establishes the principle that nurses, in the discharge of their duties, must obey and diligently execute the orders of the physician or surgeon in charge of the patient, unless, of course, such order was so obviously negligent as to lead any reasonable person to anticipate that substantial injury would result to the patient from the execution of such order or performance of such direction. Certainly, if a physician or surgeon should order a nurse to stick fire to a patient, no nurse would be protected from liability for damages for undertaking to carry out the orders of the physician. The law contemplates that the physician is solely responsible for the diagnosis and treatment of his patient.

Ever since, the law in North Carolina has been that so long as the professional care provided by the nurse in the course of executing the physician’s orders met the standard of care expected of a nurse, then the nurse (or other subordinate medical professional) could not be held liable for negligence associated with a physician-prescribed treatment.

That is, until now.

In a case decided by the narrowest of majorities in August, Connette ex rel. Gullatte v. Charlotte-Mecklenburg Hospital Authority, involved a decision by an anesthesiologist to use a type of anesthesia that was allegedly inappropriate for a young patient’s medical condition. The tragic result was profound and permanent brain damage. The instructions regarding anesthesia were carried out by a Certified Registered Nurse Anesthetist, or CRNA. The CRNA was also named in the suit. After an initial three-month trial, the jury failed to reach a verdict as to the anesthesiologist and the CRNA. The anesthesiologist promptly reached a settlement with the plaintiff. The CRNA, likely relying on Byrd, chose not to settle.

Apparently not satisfied with the amount or terms of the settlement reached with the physician, the plaintiffs refiled their suit against the CRNA and the hospital that employed him. The case proceeded to trial and the jury returned a verdict in favor of the defendants after the trial court, relying on the holding of Byrd, declined to allow an expert witness to testify as to a CRNA’s duty of care. The trial court’s decision was unanimously affirmed by a three-judge panel of the N.C. Court of Appeals. A CRNA, said the court, “did not owe an independent duty to patients in the selection and planning of treatment.” However, in its opinion, the Court of Appeals seemed less than comfortable with the outcome compelled by Byrd and, implicitly, invited the N.C. Supreme Court to take another look at its own precedent.

Review by the N.C. Supreme Court of a COA decision by a unanimous panel is discretionary, and a small fraction of such decisions are accepted by the Court. However, on the vote of only three justices (two of the seven justices had recused themselves), the Court elected to hear the appeal. The five member Court then examined the history of the licensure statutes for nurses (North Carolina was the first state to regulate the registration of nurses), the evolution of the statutory standards of care for these professionals, the increasing sophistication and independence of practitioners of nursing, and the growth in their collaborative and consultative roles with physicians.

Then it promptly and explicitly overruled Byrd.

It found no flaw in the Byrd Court’s reasoning or analysis. It did not conclude Byrd was wrongly decided. Instead, the majority seems to have sensed that the General Assembly intended to more broadly extend medical malpractice liability for nurses and just hadn’t yet gotten around to it. The Court found that the relevant licensing statutes “expressly” contemplated medical malpractice liability for RNs. Doubtful. Even so, it is generally (some may say properly) the province of the legislative branch to make policy decisions such as these, and there was no explicit language in the statutes that compelled the departure from the rule of Byrd.

One sentence from the majority opinion sticks out more than the remainder: “Because we established the legal principle at issue in Byrd and no intervening enactment or policy has emerged to change it, we are properly positioned to reverse Byrd without treading upon the Legislature’s domain as we fulfill this Court’s charge to interpret the law.” Paraphrased: “Because the General Assembly has refused to overturn Byrd, we now will do so.  After all, we wrote it.”

The Court could have more modestly concluded that the “reasonable person” standard should be replaced by “a reasonable licensed nursing professional standard,” reflecting the training, knowledge, and increased sophistication of those practitioners. However, three of the court’s seven justices boldly decided that nurses’ “elevated station” should be commensurate with an “elevated responsibility.” An intrusion on the General Assembly’s prerogative to make such a fundamental shift in policy? If this is not, then I’m not sure what is.

While the Court stated that it was not disturbing a nurse’s obligation to follow and execute a physician’s order, it added a new obligation on nurses to assess the order for its risk and efficacy. Notwithstanding that assertion, this decision appears to alter the professional relationship between physician and nurse. It might even create confusion and delay in the health care setting. At a time when nursing and support staff shortages have been researched and chronicled as a significant problem, impacting every citizen and our economy, the abolition of historical protections and the creation of new liabilities seems a strange errand upon which the Court should embark.

Insurance companies must reexamine the terms and rate structure of their malpractice insurance policies. Connette is also undeniably a victory for medical malpractice plaintiffs’ lawyers who now have another pocket to pursue. I will leave it up to you to discern who will foot the bill for the increased liability costs insurance premium bills, and whether the outcome of the case will actually improve health care outcomes in our state.